Phi Kappa Tau Housing Corp. v. Wengert

86 S.W.3d 856, 350 Ark. 335, 2002 Ark. LEXIS 519
CourtSupreme Court of Arkansas
DecidedOctober 24, 2002
Docket02-231
StatusPublished
Cited by24 cases

This text of 86 S.W.3d 856 (Phi Kappa Tau Housing Corp. v. Wengert) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Phi Kappa Tau Housing Corp. v. Wengert, 86 S.W.3d 856, 350 Ark. 335, 2002 Ark. LEXIS 519 (Ark. 2002).

Opinion

Donald L. Corbin, Justice.

This case arose from a landlord-tenant dispute after Appellant Phi Kappa Tau Housing Corporation (PKT) leased a house for its fraternity from Appellees Paul Wengert, Angie Wengert, and Matt Wengert. At the time of the lease, Appellant Rick Marcum was the fraternity’s president, and Appellant Anthony Capo was its vice-president. PKT filed suit in the Washington County Circuit Court against Appellees for replevin, claiming that they had converted the fraternity’s personal property. PKT also sought the return of the security deposit. Appellees filed a counterclaim against PKT, alleging that it had breached the lease agreement, and filed third-party complaints against Marcum and Capo, individually. The jury found in favor of PKT on its replevin claim and awarded it $8,500.00 for conversion of the property and $4,000.00 for its security deposit. The jury also found in favor of Marcum and Capo on the third-party complaints against them, determining that they were not liable for any of the alleged damages. Finally, on Appellees’ counterclaim against PKT, the jury found that the fraternity was liable to the Wengerts for $2,000.00 in damages.

At the conclusion of the trial, Appellants moved for an award of attorney’s fees and costs, pursuant to the lease agreement and Ark. Code Ann. § 16-22-308 (Repl. 1999). The trial court denied the motion on the ground that neither Appellants nor Appellees were the prevailing parties. The trial court’s ruling was based on the fact that although both sides had won their cases to a certain extent, neither had recovered anywhere near the amounts sought. The Arkansas Court of Appeals affirmed the denial of attorney’s fees to PKT because its recovery was based on the tort of conversion, and attorney’s fees are not recoverable in tort actions. See Marcum v. Wengert, 70 Ark. App. 477, 20 S.W.3d 430 (2000) (.Marcum I). The court of appeals also held that the trial court did not abuse its discretion in denying attorney’s fees to Marcum and Capo for prevailing on the third-party complaints.

Thereafter, we granted review of the court of appeals’ decision, and we reversed. See Marcum v. Wengert, 344 Ark. 153, 40 S.W.3d 230 (2001) (Marcum II). We remanded the matter to the trial court to consider (1) awarding reasonable attorney’s fees to all three Appellants under section 16-22-308 and Ark. R. Civ. P. 54, and (2) awarding reasonable attorney’s fees and costs to PKT under its lease with Appellees. Upon remand, the trial court awarded PKT $1,750.00 in attorney’s fees and $1,623.19 in costs. The trial court also awarded Marcum and Capo a total of $1,750.00 in attorney’s fees. Appellants again seek reversal of the trial court’s judgment. Because this is the second appeal of this matter in this court, our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(a) (7). We affirm the trial court’s judgment, but we modify the award of costs.

I. Award of Costs to PKT

For their first point for reversal, Appellants argue that the trial court erred in refusing to grant PKT all costs incurred in the litigation, as required by its lease agreement with the Wengerts. During the hearing below, Appellants presented an itemized statement of their costs, totaling $2,907.19. The lion’s share ($2,578.00) of their costs was for deposing each of the Wengerts. The trial court found that those deposition costs were excessive, and that one-half of the deposition costs, $1,289.00, is somewhat more reasonable. Based on this finding, the trial court reduced the deposition costs by half, and awarded total costs of $1,623.19. Appellants argue that the trial court’s ruling is contrary to the plain language of the lease agreement. We agree.

As set out in this court’s opinion in Marcum II, the lease agreement entered into between PKT and the Wengerts provided in part:

16. Attorney’s Fees: In the case suit should be brought for recovery of the premises, or for any sum due hereunder, or because of any act which may arise out of the possession of the premises, by either party, the prevailing party shall be entitled to all costs incurred in connection with such action, including a reasonable attorney’s fee.

344 Ark. at 165, 40 S.W.3d at 237-38. In construing this provision, this court held that the language was very broad and that it “required a mandatory award of reasonable attorney’s fees and costs to that party.” Id.

The trial court interpreted this lease provision as requiring an award of reasonable costs and reasonable attorney’s fees. We disagree with this interpretation, because the word “reasonable” is only used to modify the term “attorney’s fee.” It is not used to modify the term “costs.” To the contrary, a plain reading of the provision demonstrates that the amount of costs recoverable by the prevailing party are “all costs incurred in connection with such action[.]” (Emphasis added.) As this court stated in Marcum II, the words of a contract are to be taken and understood in their plain and ordinary meaning. See also First Nat’l Bank v. Griffin, 310 Ark 164, 832 S.W.2d 816 (1992), cert. denied, 507 U.S. 919 (1993). The plain language of the lease provides for an award of “all costs incurred in connection with” any action for recovery of the premises, or for any sum due under the lease, or because of any act arising out of the possession of the premises. Had the parties wished to limit the recovery of costs to only those that are deemed reasonable, they could have done so by substituting the word “reasonable” for the word “all.” Similarly, had the parties meant that only legal costs would be recoverable, as Appellees assert, they could have easily inserted the word “legal” between “all” and “costs.” But that is not what the contract provides, and we will not read into it any such qualifying language.

Moreover, we are not persuaded by Appellees’ reliance on Ark. R. Civ. P. 54(d)(2), to support their contention that deposition costs are not recoverable. In the first place, the trial court obviously found that deposition costs were recoverable under the lease, as he awarded PKT half of the total deposition costs. That finding is not clearly erroneous given the broad language of the lease agreement. 1 In the second place, Rule 54(d) and its provision of recoverable costs has no application to this issue because the parties have agreed, independently from that rule, that “all costs incurred in connection with” the litigation are recoverable. See Griffin v. First Nat’l Bank, 318 Ark. 848, 888 S.W.2d 306 (1994). Accordingly, we reject Appellees’ argument that deposition costs are not recoverable under the lease.

The only remaining question is whether the costs requested by Appellants were incurred in connection with the litigation under the lease. Appellants urge that the proof was undisputed that the remainder of the costs sought by them were incurred in connection with the litigation. Appellees do not dispute this assertion.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

King v. Barton
2023 Ark. App. 388 (Court of Appeals of Arkansas, 2023)
Shafawnda Saenz v. Keifer Wayne Gray
2022 Ark. App. 475 (Court of Appeals of Arkansas, 2022)
Dye v. Precision Foundation Specialties & Flow Rite Drainage Solutions, Inc.
2022 Ark. App. 220 (Court of Appeals of Arkansas, 2022)
Ark. Fed. Credit Union v. Pigg
2015 Ark. App. 560 (Court of Appeals of Arkansas, 2015)
Carter v. Cline
2013 Ark. 398 (Supreme Court of Arkansas, 2013)
US Fuel International, Inc. v. Murphy Oil USA, Inc.
417 S.W.3d 228 (Court of Appeals of Arkansas, 2012)
Petrohawk Properties, LP v. Heigle
386 S.W.3d 657 (Court of Appeals of Arkansas, 2011)
Worley v. City of Jonesboro
385 S.W.3d 908 (Court of Appeals of Arkansas, 2011)
Bonds v. Hunt
379 S.W.3d 57 (Court of Appeals of Arkansas, 2010)
Crown Custom Homes, Inc. v. Buchanan Services, Inc.
319 S.W.3d 285 (Court of Appeals of Arkansas, 2009)
Fowler v. First State Bank (In Re Fowler)
395 B.R. 647 (W.D. Arkansas, 2008)
Millwood-RAB Marketing, Inc. v. Blackburn
236 S.W.3d 551 (Court of Appeals of Arkansas, 2006)
Sullivan v. State
234 S.W.3d 285 (Supreme Court of Arkansas, 2006)
Swink v. Lasiter Construction, Inc.
229 S.W.3d 553 (Court of Appeals of Arkansas, 2006)
Davis v. Williamson
194 S.W.3d 197 (Supreme Court of Arkansas, 2004)
Strack v. Capital Services Group, Inc.
189 S.W.3d 484 (Court of Appeals of Arkansas, 2004)
Tyson Foods, Inc. v. Archer
147 S.W.3d 681 (Supreme Court of Arkansas, 2004)
Bailey v. Rahe
142 S.W.3d 634 (Supreme Court of Arkansas, 2004)

Cite This Page — Counsel Stack

Bluebook (online)
86 S.W.3d 856, 350 Ark. 335, 2002 Ark. LEXIS 519, Counsel Stack Legal Research, https://law.counselstack.com/opinion/phi-kappa-tau-housing-corp-v-wengert-ark-2002.